‘Women enter marriages poorer’: ConCourt strikes down Divorce Act provision over unfair pension rules
· Citizen
The Constitutional Court (ConCourt) has ruled that excluding pension interests from the redistribution of assets in certain divorce cases violates the constitutional right to equality, finding that the law unfairly disadvantages women.
In a judgment delivered on Friday, 9 October 2026, the apex court upheld a declaration that Section 7(7)(c) of the Divorce Act is unconstitutional and invalid.
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The ruling follows a February 2025 judgment by the Eastern Cape High Court in Gqeberha, which found that the exclusion of pension interests under the provision amounted to unfair gender discrimination.
The matter was referred to the ConCourt for confirmation under Section 172(2)(a) of the Constitution.
Divorce Act dispute brings pension rights into focus
The legal battle arose from a marriage in which a husband and wife entered into an ante-nuptial contract two days before their wedding in April 2004.
The agreement provided for a marriage out of community of property without accrual, meaning the spouses would maintain separate estates and would not share in the growth of each other’s assets under the accrual system.
The wife maintained that she had pursued profitable business projects during the marriage.
However, much of her attention was devoted to caring for the family’s three minor children and supporting her estranged husband in his business and personal affairs.
The marriage eventually brokedown, with the wife instituting divorce proceedings in October 2020.
As part of the proceedings, she sought a redistribution of her husband’s pension interests.
The high court judgment recorded her estimate that his retirement annuity policies were worth approximately R1.5 million.
Women face unequal financial consequences, ConCourt hears
Judge Nambitha Dambuza highlighted the wife’s argument before the ConCourt that the exclusion of pension interests disproportionately affected women because husbands were more likely to have retirement investments, or to hold investments of greater value.
She further argued that women typically entered marriages “poorer” and “less financially independent” than men and therefore, wives had less “bargaining power” when negotiating ante-nuptial contracts.
“Mrs D’s argument was that, as a woman, she is in a vulnerable position due to the gender inequality inherent in society,” Dambuza remarked.
“She maintains that… a large number of women rely on their partners’ retirement investments rather than contributing independently to their own due to women’s income often being absorbed by household expenses whilst men, who earn more on average, are more likely to invest in retirement schemes,” the judge continued.
The husband initially contested the matter, arguing that he had never maintained his wife during the marriage and that she was not entitled to redistribution of his assets.
He did not, however, oppose the proceedings in the high court.
Divorce Act provision found to violate equality rights
The Eastern Cape High Court had found that Section 7(7)(c) unfairly discriminated against women in marriages concluded before and after 1 November 1984 on the grounds of gender and sex.
Dambuza noted that Justice Minister Mmamoloko Kubayi subsequently submitted an explanatory affidavit and notified the ConCourt that she would abide by its decision.
“The minister of justice emphasises that any order should apply prospectively so as not to disturb completed divorces and wound up marital estates.”
In considering the matter, the apex court held that the exclusion of pension interests could no longer be justified by “any rational purpose and cannot be sustained”.
Dambuza determined that Section 7(7)(c) was inconsistent with Sections 9(1) and 9(3) of the Constitution.
Section 9(1) guarantees everyone equal protection and benefit of the law, while Section 9(3) prohibits the state from unfairly discriminating, directly or indirectly, against anyone on grounds including gender and race.
As a result, the ConCourt confirmed the high court’s declaration of invalidity with immediate effect, but suspended the operation of the invalidity order for 24 months to give Parliament time to amend the Divorce Act.
Dambuza also directed that the ruling would apply going forward in line with the justice minister’s request.
Furthermore, the Minister of Home Affairs was ordered to pay the costs of the application.